Citation Nr: 1009707
Decision Date: 03/15/10 Archive Date: 03/24/10
DOCKET NO. 08-37 525 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Manila, the Republic of the Philippines
THE ISSUES
1. Entitlement to service connection for the cause of the
Veteran's death.
2. Entitlement to dependency and indemnity compensation
(DIC) under 38 U.S.C.A. § 1318.
ATTORNEY FOR THE BOARD
Matthew W. Blackwelder, Associate Counsel
INTRODUCTION
The Veteran had recognized Guerilla Service in the
Philippines from February 1945 to October 1945. He died in
March 2008. The appellant is the Veteran's surviving spouse.
This appeal comes to the Board of Veterans' Appeals (Board)
from July 2008 and February 2009 rating decisions.
FINDINGS OF FACT
1. The Veteran died in March 2008, the death certificate
lists the immediate cause of his death as multi-organ
failure. The death certificate also indicates that
Alzheimer's disease was a significant condition that
contributed to the Veteran's death.
2. At the time of his death, the Veteran was service
connected for residuals of a shrapnel wound to the left hand
with amputation of the middle finger, rated 50 percent
disabling and residuals of a shrapnel wound to the left knee
with injury to muscle group XIV, rated 10 percent disabling.
3. The Veteran was awarded a total disability rating based
on individual unemployability (TDIU) effective in 2003 and he
was discharged from service in 1945.
4. At the time of his death in March 2008, the Veteran had
been rated at 100 percent for a period of less than 10 years.
5. The Veteran was not a prisoner of war.
CONCLUSIONS OF LAW
1. A service-connected disease or disability was neither the
principal cause, nor a contributory cause, of the Veteran's
death. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303,
3.312 (2009).
2. Criteria for an award of DIC benefits under the
provisions of 38 U.S.C.A. § 1318 have not been met. 38
U.S.C.A. §§ 1318, 7105 (West 2002); 38 C.F.R. §§ 3.22, 3.104,
3.105(e) (2009); 70 Fed. Reg. 72,211 (2005); Sabonis v.
Brown, 6 Vet. App. 426 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for the Cause of Death
Service connection for VA compensation purposes will be
granted for a disability resulting from disease or personal
injury incurred in the line of duty or for aggravation of a
pre-existing injury in the active military, naval or air
service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). The
death of a Veteran will be considered as having been due to a
service-connected disability when the evidence establishes
that such disability was either the principal or a
contributory cause of death. See 38 C.F.R. § 3.312(a). The
issue involved will be determined by the exercise of sound
judgment, without recourse to speculation, after a careful
analysis has been made of all the facts and circumstances
surrounding the death of the Veteran, including,
particularly, autopsy reports. See id.
To establish service connection for the cause of a Veteran's
death, the evidence must show that a disability incurred in
or aggravated by service either caused or contributed
substantially or materially to cause death. 38 U.S.C.A.
§ 1310; 38 C.F.R. § 3.312.
For a service-connected disability to constitute a
contributory cause of death, it must be shown to have
contributed substantially and materially to the Veteran's
death; combined to cause death; aided or lent assistance to
the production of death; or resulted in debilitating effects
and general impairment of health to an extent that would
render the Veteran materially less capable of resisting the
effects of other disease or injury causing death, as opposed
to merely sharing in the production of death. 38 C.F.R.
§ 3.312. Although there are primary causes of death that by
their very nature are so overwhelming that eventual death can
be anticipated irrespective of coexisting conditions, even in
such cases, consideration must be given to whether there may
be a reasonable basis to hold that a service-connected
condition was of such severity as to have a material
influence in accelerating death, where the service-connected
condition affected a vital organ and was of itself of a
progressive or debilitating nature. Id.
The Veteran passed away in March 2008. The death certificate
lists the immediate cause of his death as multi-organ
failure. The death certificate also indicates that
Alzheimer's disease was a significant condition that
contributed to the Veteran's death.
At the time of his death, the Veteran was service connected
for residuals of a shrapnel wound to the left hand with
amputation of the middle finger (rated at 50 percent), and
residuals of a shrapnel wound to the left knee with injury to
muscle group XIV (rated at 10 percent). The Veteran was
assigned a TDIU effective in February 2003.
The appellant asserted in her substantive appeal that the
medical certificate from Dr. Ocampo showed that the Veteran's
service connected injuries substantially and materially
contributed to his death essentially because they had caused
him pain for a number of years. It appears that the
appellant is referring to either the Veteran's death
certificate which was signed by Dr. Ocampo, or a May 2008
medical certificate he signed with essentially the same
information. Regardless, a review of them does not show that
the Veteran's service connected disabilities had anything to
do with the Veteran's death; and no other statement has been
received from Dr. Ocampo suggesting such a connection.
The Veteran was service connected for shrapnel wounds to his
hand and knee, but there is no medical suggestion that either
injury impacted any organ; and the cause of the Veteran's
death was multi-organ failure. Additionally, the only
contributing cause of death was Alzheimer's disease; and
again there is no obvious correlation between shrapnel wounds
to the hand and knee and Alzheimer's disease, nor is there an
obvious correlation between Alzheimer's disease and the
Veteran's military service many decades earlier.
While the appellant believes that the Veteran's service
connected disabilities caused or contributed to the cause of
his death, she is not medically qualified to prove a matter
requiring medical expertise, such as an opinion as to
diagnosis or medical causation. See Espiritu v. Derwinski, 2
Vet. App. 492, 494-495 (1992). As such, her opinion is
insufficient to provide the requisite nexus between the
Veteran's service connected disabilities and his death.
To date no medical or other competent evidence has been
presented showing that the Veteran's death was in anyway
related to his service connected disabilities.
As such, the criteria for service connection for the cause of
the Veteran's death have not been met, and the appellant's
claim is therefore denied.
II. DIC under 38 U.S.C.A. § 1318
Even when a Veteran's service connected disability did not
directly cause his death, VA will nevertheless pay DIC
benefits to the surviving spouse of a deceased Veteran who
was in receipt of, or entitled to receive compensation, at
the time of his death for a service-connected disability that
was rated totally disabling 1) if the disability was
continuously rated totally disabling for a period of 10 or
more years immediately preceding death; 2) if the disability
was rated by the VA as totally disabling continuously since
the Veteran's release from active duty and for at least 5
years immediately preceding death; or 3) if the Veteran was a
former prisoner of war who died after September 30, 1999, and
the disability was continuously rated totally disabling for a
period of not less than one year immediately preceding death.
38 U.S.C.A. § 1318(b).
For purposes of this section, "entitled to receive" means
that at the time of death, the Veteran had service-connected
disability rated totally disabling by VA but was not
receiving compensation because: (1) VA was paying the
compensation to the Veteran's dependents; (2) VA was
withholding the compensation under authority of 38 U.S.C.
5314 to offset an indebtedness of the Veteran; (3) the
Veteran had applied for compensation but had not received
total disability compensation due solely to clear and
unmistakable error in a VA decision concerning the issue of
service connection, disability evaluation, or effective date;
(4) the Veteran had not waived retired or retirement pay in
order to receive compensation; (5) VA was withholding
payments under the provisions of 10 U.S.C. 1174(h)(2); (6) VA
was withholding payments because the Veteran's whereabouts
was unknown, but the Veteran was otherwise entitled to
continued payments based on a total service-connected
disability rating; or (7) VA was withholding payments under
38 U.S.C. 5308 but determines that benefits were payable
under 38 U.S.C. 5309. 38 C.F.R. § 3.22.
At the time of his death in March 2008 the Veteran was in
receipt of a 100 percent TDIU rating, which had been
effective since February 2003. As such, the Veteran had only
been rated at 100 percent for approximately 5 years at the
time of his death, which is unfortunately less than the 10
year statutory requirement for DIC benefits.
The appellant has argued that the Veteran was totally
disabled long before 2003, and therefore she should be
granted DIC benefits. This type of argument is known as
seeking hypothetical entitlement.
Hypothetical entitlement is a concept that was initially
recognized in 1997 when the United States Court of Appeals
for Veterans Claims (Court) held that a surviving spouse
could attempt to demonstrate that a Veteran
"hypothetically" would have been entitled to a different
decision on a service connection claim, based on evidence in
the claims folder or in VA custody prior to the Veteran's
death and the law then applicable or subsequently made
retroactively applicable. See Green v. Brown, 10 Vet. App.
111, (1997). Thereafter, in Wingo v. West, 11 Vet. App. 307
(1998), the Court permitted a DIC award in a case where the
Veteran had not established entitlement to VA compensation
for a service-connected total disability and had never filed
a claim for such benefits which could have resulted in
entitlement to compensation for the required period. The
Court concluded that the language of 38 C.F.R. § 3.22(a)
would permit a DIC award where it is determined that the
Veteran "hypothetically" would have been entitled to a
total disability rating for the required period if he had
applied for compensation during his lifetime.
However, effective January 21, 2000, VA amended 38 C.F.R. §
3.22, the regulation implementing 38 U.S.C.A. § 1318, to
limit the award of dependency and indemnity compensation to
cases in which the Veteran during his lifetime had
established a right to receive total service-connected
disability compensation for the period of time required by 38
U.S.C.A. § 1318, or would have established such right but for
clear and unmistakable error in the adjudication of any
previous claim. As such, the regulation, as amended,
prohibited "hypothetical entitlement" as a basis for
establishing eligibility.
In this case, the appellant's claim was received in April
2008, and her hypothetical entitlement argument is therefore
precluded by law. Thus, the appellant may only prevail on
her claim under 38 U.S.C.A. § 1318 if she can show either (1)
that the Veteran met the statutory duration requirements for
a total disability rating at the time of death; or (2) that
such requirements would have been met, but for clear and
unmistakable error in a previous decision.
In considering the evidence of record under the laws and
regulations as set forth above, the Board concludes that the
appellant is not entitled to DIC benefits.
The Veteran was not in receipt of compensation at the 100
percent rate due to any service-connected disability for a
period of at least five years immediately after his discharge
from active service or for 10 or more years prior to his
death.
As noted above, the Veteran's 100 percent rating for TDIU
took effect in 2003, approximately five years before his
death in 2008. Accordingly, the time requirement for a total
disability rating under 38 U.S.C.A. § 1318 was not satisfied.
Moreover, there is no assertion that the Veteran was a former
prisoner of war, and because the Veteran was discharged from
active duty in 1945, the five-year rule of § 1318 does not
apply.
Additionally, the appellant has not alleged that a clear and
unmistakable error was made in an earlier rating action such
that the Veteran would have met one of the durational
requirements for a total rating, but for the error.
In sum, the Board finds that the basic threshold criteria for
establishing entitlement to benefits under 38 U.S.C.A. § 1318
are not met. As such, this claim is denied as a matter of
law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
II. Duties to Notify and Assist
Under applicable criteria, VA has certain notice and
assistance obligations to claimants. See 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a). Notice must be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits and
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; and (3) inform the
claimant about the information and evidence the claimant is
expected to provide. Pelegrini v. Principi, 18 Vet. App.
112, 120-21 (2004) (Pelegrini II).
In the context of a claim for Dependency and Indemnity
Compensation (DIC) benefits, which includes a claim of
service connection for the cause of the Veteran's death,
section 5103(a) notice must be tailored to the claim. The
notice should include (1) a statement of the conditions, if
any, for which a Veteran was service connected at the time of
his or her death; (2) an explanation of the evidence and
information required to substantiate a DIC claim based on a
previously service-connected condition; and (3) an
explanation of the evidence and information required to
substantiate a DIC claim based on a condition not yet service
connected. Unlike a claim to reopen, an original DIC claim
imposes upon VA no obligation to inform a DIC claimant who
submits a nondetailed application of the specific reasons why
any claim made during the deceased Veteran's lifetime was not
granted. Where a claimant submits a detailed application for
benefits, VA must provide a detailed response. Hupp v.
Nicholson, 21 Vet. App. 342 (2007).
Here, required notice was provided by a letter dated in
August 2009, which informed the appellant of all the elements
required by the Pelegrini II Court as stated above with
regard to her claim of entitlement to service connection for
the cause of the Veteran's death; as well as informing her of
the conditions for which the Veteran was service connected at
the time of his death.
With regard to the claim of DIC under 38 C.F.R. § 1318, the
relevant facts are not in dispute, and because the claim is
denied as a matter of law, a discussion of the notice and
assistance requirements under the aforementioned law and
regulation is not warranted.
With regard to the duty to assist, the Veteran's death
certificate was obtained. Additionally, the appellant was
offered the opportunity to testify at a hearing, but she
declined. While no medical opinion of record was obtained,
there was no medical suggestion that the Veteran's death even
might be related to his service connected disabilities;
therefore no duty to obtain a VA examination is triggered.
Thus, VA has satisfied its duties to notify and assist, and
additional development efforts would serve no useful purpose.
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991);
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of
the denial of the appellant's claim, no disability rating or
effective date will be assigned, so there can be no
possibility of any prejudice to the appellant under the
holding in Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Because VA's duties to notify and assist have been met, there
is no prejudice to the appellant in adjudicating this appeal.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for the cause of the Veteran's death is
denied.
DIC benefits under the provisions of 38 U.S.C.A. § 1318 are
denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs